Devine says DNA ruled out retrial in '76 murder

July 28, 2006|By Jeff Coen, Tribune staff reporter

Cook County's top prosecutor testified in federal court Thursday that he thought DNA evidence in the case against Michael Evans "significantly undercut" an eyewitness account given by a woman who had said she saw Evans struggle with a 9-year-old girl the night the child was killed.

Evans has sued the city and 12 police officers, accusing them of framing him for the 1976 murder of Lisa Cabassa. Evans' conviction was reversed in 2003 by DNA evidence, which showed that someone else had sexually assaulted the child.

State's Atty. Richard Devine, who in 2003 was left with the choice of whether to retry Evans, said his assistants wanted time to review the case.

"They wanted to look at all aspects of it," Devine testified. "They would come to me for a decision" on whether to try Evans again.

"It was a full review of what had happened and where we were and what we had now," Devine said.

In the end, Devine said he personally made the call not to proceed.

"I decided that given particularly the DNA evidence and the fact that the review of the case did not reveal any additional evidence beyond what we had," including the eyewitness account, Evans should not be retried, Devine said.

"In my view it was our obligation under those circumstances not to retry the case."

Evans' lawyers have accused police of coercing the eyewitness, Judith Januszewski, into naming Evans. She originally told police that she was not sure what she had seen at the South Side corner.

Earlier this month, Januszewski testified that she was held by police against her will at Area 2 police headquarters before telling them she had seen Evans that night.

On cross-examination, Devine was asked whether it was correct that his decision was not based on any evidence of police misconduct in the case.

"That's correct," he said.

Under questioning by Evans' lawyers, Devine testified that his decision was "not an assessment of the evidence that was gathered at that time."

"I wasn't there, No. 1," he said. "And No. 2, we now had the benefit of DNA evidence, which nobody did back then."

John Gorman, spokesman for Devine, said he thought the testimony Thursday was the first time the state's attorney has testified in any court since 2000.

Evans' lawyer, Jonathan Loevy, also asked Devine about a letter Devine wrote to the Tribune in 2003 regarding the Evans case. Loevy showed a portion of it to the jury.

"I want to make it very clear that anytime anyone spends a day, a week or a year in jail for a crime he or she did not commit, it is, indeed, regrettable," Devine wrote. "In the case of Evans and Terry, wrongly incarcerated for 27 years, that feeling of regret is both present and strong."

Loevy asked Devine whether his decision not to prosecute Evans again was based on his belief that Evans was wrongfully convicted. Devine answered that he had decided simply on the weight of the evidence available to him in 2003.